McLeod v. Purnell

Wood, J. This is an action by J. A. McLeod against the commissioners of Improvement District No. 72 of thp city of Pine Bluff, Arkansas. McLeod alleged that lie was the owner of property in the district which was attempting to be organized by the city council of the city of Pine Bluff by virtue of an ^ordinance passed August 6, 1923, as follows, to-wit: “Ordinance No. 1868' — An ordinance granting the formation of Paving District No. 72 of the -City of Pine Bluff, Arkansas; ’ ’ that the ordinance sets out correctly the property in the district and the streets to be paved; that the title, “An ordinance granting the formation of Paving District No. 72 of the City of Pine Bluff, Arkansas,” appears on the minutes of the city council, but was not published as part of the ordinance; that the omission of the title in the publication of said ordinance invalidated said ordinance and rendered all subsequent proceedings with reference to the formation of said district void and of no effect; that on March 17, 1924, the city council passed ordinance No. 1924, assessing the benefits of this district, and the minutes of the city council meeting show an ordinance entitled, “An ordinance assessing the cost-of benefits in Paving District No. 72,” but, in publishing this ordinance, no title was published, and therefore said ordinance did not become effective, and is null and void. Plaintiff further alleged that, in the passage of ordinance No. 1868, above mentioned, it was read three times and passed at the same meeting, and that, while there were more than two-thirds of the council members present and voting for the motion to suspend the rule, the minutes of the council meeting do not show the number of members voting to dispense with the rule, but merely show that, on motion duly seconded, the rules were suspended; that the failure of the minutes to show the number of members voting to suspend the rules and.permit said ordinance to be read a second and a third time and passed invalidates the ordinance. Plaintiff further alleged that the petition and ordinances for the district are void upon the ground of uncertainty of the improvements contemplated, in that they recite that the streets to be improved shall be as follows: Plum Street from the south side of Sixth Avenue to the south side of Eighth Avenue; ’Cedar Street from the south .side of Sixth Avenue to the south side of Eighth Avenue; Hickory Street from the south side of Sixth Avenue to the north side of Thirteenth Avenue; and so on through the list of streets; that the use of the term “side” is indefinite, and invalidates the petition. Plaintiffs further allege that the board of improvement and also the board of assessors were appointed by the city council by resolutions which were adopted by “aye” and “no” votes, without any roll-call, which is contrary to the law in such cases made and provided, and such appointments are therefore void. Plaintiff alleged that the assessment levied by this district will be a lien on his property and cast a cloud upon his title, wherefore he prayed that the ordinance be declared null and void and defendants enjoined from proceeding with the improvements or from collecting any assessments. The defendants demurred to the- complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and McLeod refused to plead further, but elected to stand on liis complaint. Whereupon decree was entered dismissing the complaint for want of equity. Prom that decree is this appeal. The appellant contends that the ordinance is void for failure to comply with the statute regarding publication of the ordinance establishing the district. Section 7502 of Crawford & Moses’ Digest provides, inter alia, “no by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.” Section 5650 of C. & M. Digest provides: “Within twenty days after the designation of such district or districts, the clerk of said city or town shall publish the ordinance of the council establishing the district, in some newspaper published in said city or town, for one insertion. ’ ’ Section 7502, supra, clearly contemplates that municipal ordinances shall have a title, and § 5650, supra, requires the publication of the ordinance. But, although § 7502 requires that an ordinance shall have ¡a title, still the title is no paid of the body of the ordinance, .any more than the title of an act of the Legislature is a part of the enactment. In La Prairie v. Hot Springs, 124 Ark. 346-351, we said: “However, the legislative form of affixing á title to a statute is a custom of such general nature in American legislation that it has been always followed here, regardless of any express requirement in the organic law. The title itself forms no part of the enactment.” And in Special School District No. 33 v. Howard, 124 Ark. 475, we said: “While the title of an act may be looked to to ascertain its meaning, it is still no part of the act, and is not controlling in its construction. ’ ’ Although, under the statute, it was necessary for the ordinance to have a title which should designate the subject-matter of the enactment, yet the statute, § 5650, requiring the publication of the ordinance, is fully complied with when the bod,y of the ordinance is published, and the ordinance establishing the district is not void because of a failure fo also include tbe title in tbe publication. Tbe only purpose of the statute requiring the publication of the ordinance is to give notice to the property owners in the district, whose lands are to be assessed to pay for the improvement, of the proceedings that are on foot as affecting them. This design of the lawmakers is fully accomplished when the body of the ordinance itself is set forth in the publication. Simply giving the title to the ordinance, which designates the number of the ordinance and the number of the paving district, without describing the bounds of the district, giving the several additions to the city and the lots and blocks included therein which constitute the district, could be of no possible practical use to the property owners affected. Such a publication would give the property owners no notice or information whatever such as the law intended they should have by the publication of the ordinance, and would be of no practical importance to the property owners, because it would merely designate the ordinance and the district by number, and would not delimit boundaries or describe the lands embraced in the district. The omission therefore of the title in the publication of the ordinance does not invalidate the order establishing the improvement district. What we have said concerning the publication of the title of the ordinance establishing the district applies likewise to the ordinance assessing the benefits to the property constituting the district. The appellant urges, in the nest place, that the ordinance was void because the record does not affirmatively show that two-thirds of the members of the council were present and voted to suspend the rules requiring the ordinance to be read on three different days, according to the provisions of § 7502, supra. The ordinance in question Was read three times and passed at the same meeting. More than two-thirds of the council members were present and voted for the motion to suspend the rule, and the record or minutes of the council shoAV that, on motion duly seconded, the rules were suspended, but do not show the number of members voting to dispense with the rule. There is no statute requiring that the minutes or record of the city council shall show the number of aldermen voting to suspend the rule. Two-thirds of the city council were present and voted to suspend the rule of the statute, and the records or minutes of the council show that the motion to suspend the rule was duly seconded, and the rule was suspended, and the ordinance read three times and passed at the same meeting. An ordinance thus enacted is valid. The appellant also contends that the ordinance is void because of uncertainty in describing the improvement to be made, in that the petition for the creation of the district, in describing the improvement for paving, designated “Plum Street from the south side of Sixth Avenue to the south side of Eighth Avenue,” and used similar phrasing in describing that part of other streets included in the district. There is no vagueness or uncertainty in the language of the petition thus describing the improvement. The south side of an avenue or street means nothing more nor less than the south boundary line of such avenue or street, and no plainer terms could be used to express the area or distance covered by such description. It is contended, in the last place, that the commissioners and assessors of the improvement district were appointed by resolution of the city council adopted by “aye” and “no” votes, but without any roll-call. It is sufficient to say, in answer to this contention, that there is no statute requiring that the city council shall appoint the board of commissioners and the assessors by resolution adopted on roll-call. The statute simply provides that “the city council shall at once appoint three persons to constitute the board of commissioners, and also three persons to constitute the board of assessors. ’ ’ Sections 5652 and 5657, C. & M. Digest. No method of procedure is prescribed for making the appointment, and, in the absence of a prescribed statutory method, the council could adopt its own usual method for making appointments in such, cases. The allegations of the complaint show that the assessors were appointed by the city council by resolution adopted by “aye” and “no” votes. This, in the absence of a statute requiring a roll-call, was sufficient. The court did not err in sustaining the demurrer and in entering a decree dismissing the appellant’s complaint. The decree is therefore affirmed.